The Justice Department’s third attempt to charge James Comey landed on Oct. 5, 2026, exactly 10 years to the day after the conduct prosecutors say began. This time, the case came by information, not indictment, and Comey immediately moved to throw it out.
That filing put the legal fight in plain view. Comey, who intends to fight the charges, argued that he did not consent to being charged by information, a step that matters because he did not waive his Fifth Amendment right to a grand jury indictment. The government says that a decade ago he caused an FBI employee to transmit classified information to the press.
The timing is what gives the case its urgency. The Espionage Act carries a 10-year statute of limitations, while the ordinary federal limit is five years, and Comey was charged on the last day prosecutors could rely on the longer period if their theory is right. He has already filed a motion to dismiss, making the first question for the court whether the case was started in a way the law allows.
That question is not just about procedure. The 10-year limitations language in the Espionage Act refers to an indictment and says nothing about an information, while Supreme Court precedent says differences in wording are meant to matter. In a separate 10-year statute for certain immigration offenses, Congress spelled out that either an indictment or an information would stop the clock, which underscores the omission here and gives Comey’s challenge its sharpest point.
Prosecutors may answer that the alleged conspiracy extended into 2017, which would change the timing analysis if the judge accepts it. But if the court rejects the DOJ’s reading of the deadline, the case is over. And if the judge sides with prosecutors, the matter still has to go before a grand jury because Comey did not waive that right, leaving the government with another hurdle even if it survives this one.
That is why the case now turns on a narrow but decisive issue: whether the Justice Department can use an information to hold the charge alive long enough to reach a grand jury, or whether the clock ran out before prosecutors took the step they needed.
